UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jessica Hollenkamp
v.
Civil No. 12-cv-301-JD
Town of Conway
NOTICE OF RULING
Re:
Document No. 5, Proposed Discovery Plan
The parties’ proposed discovery plan (doc. no. 5) is approved.
However, the court orders the parties to file a supplement to
the plan for the reasons explained below.
The parties’ statement regarding electronic discovery is
inadequate. Rule 26(f)(3)(C) requires that a plan “must”
include the parties’ views on electronic discovery “including
the form or forms in which it should be produced . . . .” The
parties’ proposed discovery plan includes nothing about any
agreement(s) with respect to electronic discovery, stating
instead that the parties “agree to produce electronically stored
information (ESI) as permitted under Federal Rules of Civil
Procedure 34. The parties acknowledge that they have an ongoing
duty to preserve all evidence (including ESI) which may be
relevant to this case.” More is required under the rule.
Accordingly, the parties are ordered to meet and confer and
file, on or before November 5, 2012, a joint motion to
supplement the discovery plan that outlines more specifically
their plans/agreements with respect to electronic discovery.
The court refers the parties to the following outline of
potential issues to discuss:
1. Preservation. Counsel should attempt to agree on steps
the parties will take to segregate and preserve ESI in
order to avoid accusations of spoliation.
2. E-mail Information. Counsel should attempt to agree on
the scope of e-mail discovery and e-mail search
protocol.
3. Back-up and Archival Data. Counsel should attempt to
agree on whether responsive back-up and archival data
exists, the extent to which back-up and archival data is
reasonably accessible, and who will bear the cost of
obtaining such data.
4. Format and Media. Counsel should attempt to agree on the
format and media to be used in the production of ESI,
and whether production of some or all ESI in paper form
is agreeable in lieu of production in electronic format.
5. Reasonably Accessible Information and Costs. Counsel
should attempt to determine if any responsive ESI is not
reasonably accessible, i.e., is accessible only by
incurring undue burdens or costs.
6. Privileged or Trial Preparation Materials. Counsel also
should attempt to reach agreement regarding what will
happen in the event privileged or trial preparation
materials are inadvertently disclosed. See Fed. R. Evid.
502.
In light of the court's approval of the parties' proposed
discovery plan subject to the aforementioned modification, the
pretrial conference currently scheduled to occur on October 19,
2012, is cancelled.
Deadline for joinder of additional parties and filing of thirdparty actions is February 1, 2013.
Trial is scheduled for the two-week trial period beginning
November 13, 2013.
__________________________
Landya McCafferty
United States Magistrate Judge
Date: October 15, 2012
cc: Andrew B. Livernois, Esq.
Michael S. McGrath, Esq.
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